Endangered Species Act: Information on Species Protection on Nonfederal
Lands (Letter Report, 12/20/94, GAO/RCED-95-16).
Congress is considering reauthorization of the Endangered Species Act.
GAO was asked to obtain information on the efforts of the Fish and
Wildlife Service to protect species on nonfederal lands. A predominant
number of the species protected under the Act have the major share of
their habitat on nonfederal lands. Specifically, of the 781 listed
species for which the Fish and Wildlife Service was responsible as of
May 1993, 712 (or over 90 percent) have habitat on nonfederal lands and
of these, 516 have over 60 percent of their total habitat on nonfederal
lands. Two processes authorized under the Act have addressed potential
conflicts between the effort to protect species and land use activities
on nonfederal lands. The implementation of these processes has resulted
in nonfederal landowners altering their planned or ongoing activities in
various ways to minimize and/or mitigate their potential impact on
endangered species. In addition, the Fish and Wildlife Service and
others have initiated legal action to protect species.
--------------------------- Indexing Terms -----------------------------
REPORTNUM: RCED-95-16
TITLE: Endangered Species Act: Information on Species Protection
on Nonfederal Lands
DATE: 12/20/94
SUBJECT: Endangered animals
Environmental policies
Land management
Land use law
Environmental law
Law enforcement
Wildlife conservation
Endangered plants
Real property
IDENTIFIER: FWS Law Enforcement Management Information System
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Cover
================================================================ COVER
Report to Congressional Requesters
December 1994
ENDANGERED SPECIES ACT -
INFORMATION ON SPECIES PROTECTION
ON NONFEDERAL LANDS
GAO/RCED-95-16
Species Protection on Nonfederal Lands
Abbreviations
=============================================================== ABBREV
ESA - Endangered Species Act
FWS - Fish and Wildlife Service
GAO - General Accounting Office
HCP - habitat conservation plan
NEPA - National Environmental Policy Act
Letter
=============================================================== LETTER
B-257924
December 20, 1994
The Honorable Gerry E. Studds
Chairman
The Honorable Jack Fields
Ranking Minority Member
Committee on Merchant Marine
and Fisheries
House of Representatives
The Honorable Jim Saxton
Ranking Minority Member
Subcommittee on Environment
and Natural Resources
Committee on Merchant Marine
and Fisheries
House of Representatives
The Congress is currently considering reauthorization of the
Endangered Species Act (ESA). To assist in this effort, you asked
that we obtain information on the efforts of the Department of the
Interior's U.S. Fish and Wildlife Service (Service) to protect
species under the ESA, particularly on nonfederal lands.
Specifically, we (1) determined the extent to which species listed
under the act have habitat on nonfederal lands, (2) obtained
information on how two of the act's provisions have addressed
potential conflicts between species protection and the use of
nonfederal lands, and (3) determined the extent and nature of legal
actions taken to protect species or as a result of the protection
being provided to species.
This letter provides the results of our review. The statistical data
included in this letter were primarily obtained from Service
officials in response to a survey we conducted.
RESULTS IN BRIEF
------------------------------------------------------------ Letter :1
A predominant number of the species protected under the Endangered
Species Act have the major share of their habitat on nonfederal
lands. Specifically, of the 781 listed species for which the Service
was responsible as of May 1993, 712--over 90 percent--have habitat on
nonfederal lands. Of these, according to the Service, 517 have over
60 percent of their total habitat on nonfederal lands.
Two processes authorized under the act--the consultation process
under section 7 and the habitat conservation planning process under
section 10--have addressed potential conflicts between the effort to
protect species and land use activities on nonfederal lands. The
implementation of these processes has resulted in nonfederal
landowners' altering their planned or ongoing activities in various
ways to minimize and/or mitigate their potential impacts on protected
species. For example, nonfederal landowners have been required to
replace species habitat expected to be lost as a result of their
activities.
The Service and others have initiated legal actions to protect
species or as a result of the protection being provided to species.
Specifically, the Service has enforced the act's prohibition on the
taking of protected species.\1 The Service's data showed that for 126
takings violations adjudicated during fiscal years 1988 through 1993,
criminal charges were brought in 86 instances, and civil charges were
brought in 40 instances. In at least four instances, injunctive
relief was obtained to stop or delay an activity on nonfederal lands
that was viewed as posing a threat to a protected species. And court
decisions in two instances denied individuals' claims that species
protection under the act resulted in the uncompensated taking of
private property in violation of the Fifth Amendment to the U.S.
Constitution.
--------------------
\1 "Taking" is defined broadly and includes killing, harming, or
harassing protected animal species and, in certain instances,
modifying their habitat. While the taking provision does not apply
to plant species, plants do receive protection under other provisions
of the ESA.
BACKGROUND
------------------------------------------------------------ Letter :2
The Congress enacted the ESA in 1973 to protect plant and animal
species whose survival is in jeopardy. The Secretary of the
Interior, through the U.S. Fish and Wildlife Service, generally is
responsible for implementing the ESA for freshwater and land
species.\2 Section 9 of the act, its primary species protection
provision, and ESA's implementing regulations generally prohibit the
taking of threatened or endangered fish and wildlife species (listed
species). In addition to this provision, the act established two
important processes that provide for the protection of listed species
existing on nonfederal lands--the consultation process under section
7 and the habitat conservation planning process under section 10.
The consultation process under section 7 can affect nonfederal
landowners if a project or activity on nonfederal lands requires some
form of federal approval, such as a permit, or involves the
expenditure of federal funds. Specifically, section 7 requires,
among other things, federal agencies to consult with the Service to
ensure that actions they authorize, fund, or carry out are not likely
to jeopardize the continued existence of a listed species, including
plants, or damage its "critical habitat"--that is, habitat that the
Service has deemed essential to the species' survival and that may
require special management or protection. If a consultation
determines that a federally authorized or funded activity on
nonfederal lands is likely to adversely affect listed species, the
nonfederal landowner (or the authorizing federal agency) may be
required to implement actions to minimize and/or mitigate the
activity's impact on listed species or their critical habitat.
The habitat conservation planning process under section 10 provides a
mechanism to address situations in which nonfederal projects or
activities not requiring federal authorization or funding are in
potential conflict with the protection of listed species; that is,
such projects or activities may result in a prohibited taking of a
listed animal or plant. Through this process, nonfederal landowners
with activities or projects that may harm listed species can obtain a
permit that allows the incidental taking of a listed species.
To obtain an "incidental take" permit, the nonfederal landowner must
develop a habitat conservation plan (HCP)--a formal plan that
specifies the effects that landowners' activities are likely to have
on listed species, the measures that will be taken to minimize and
mitigate these effects, the alternatives that the applicant
considered and reasons why such alternatives were not implemented,
and any other measures the Service may require. Typical activities
in the process of developing an HCP include identifying affected
listed species and probable impacts, negotiating with the Service
over appropriate mitigation measures, and developing an environmental
impact statement or environmental assessment.\3 The Service cannot
approve a plan and issue a permit allowing incidental taking,
however, if doing so would appreciably reduce the species' chances
for survival and recovery.
--------------------
\2 The Secretary of Commerce, through the National Marine Fisheries
Service, is responsible for most saltwater species protected under
the ESA.
\3 These are public documents required under the National
Environmental Policy Act (NEPA). The purpose of NEPA is to foster a
full disclosure and analysis of the environmental issues surrounding
a proposed federal action.
LISTED SPECIES' HABITAT IS
PREDOMINATELY ON NONFEDERAL
LANDS
------------------------------------------------------------ Letter :3
Over 90 percent (712 of 781) of the listed species in the United
States for which the Service had responsibility as of May 10, 1993,
have some or all of their habitat on nonfederal lands. The 712
species with habitat on nonfederal lands are divided approximately
equally between plants and animals (vertebrates and invertebrates)
(see fig. 1).
Figure 1: Type of Listed
Species With Nonfederal Habitat
(See figure in printed
edition.)
Note: Total number of species with nonfederal land habitat: 712
Nonfederal lands represent a considerable portion of the total
habitat for most of the 712 species. Table 1 provides data on the
portion of the habitat for the 712 species that is on nonfederal
lands.
Table 1
Portion of Listed Species' Habitat on
Nonfederal Lands
Estimated percentage
of habitat on Vertebrate Invertebrate Plan Tota
nonfederal lands s s ts l
---------------------- ---------- ------------ ---- ----
1-20 percent 31 4 34 69
21-40 percent 24 6 16 46
41-60 percent 40 7 33 80
61-80 percent 40 5 30 75
81-99 percent 72 54 52 178
100 percent 44 32 188 264
============================================================
Total 251 108 353 712
------------------------------------------------------------
According to the data in table 1, 517 (about 73 percent) of the 712
species have over 60 percent of their total habitat on nonfederal
lands, while 264 (about 37 percent) of the 712 species are completely
dependent on nonfederal lands for their habitat.
Many listed species share their nonfederal habitat with other listed
species. More specifically, 454 species exist with other listed
species on the same nonfederal lands. Of these, 138 share the same
nonfederal habitat with 1 other listed species, while 155 share
nonfederal habitat with 5 or more other listed species.
Nonfederal lands containing habitat for listed species are owned by a
variety of landowners. Private landowners (private citizens and
companies or corporations) are the most prevalent type of owner; 609
species have some or all of their habitat on these lands.
Governmental entities (state, county, and/or city governments) are
the owners of lands with habitat for 516 listed species. Examples of
other owners of lands containing habitat for listed species include
utilities, water districts, a port district, airports, and
universities. Figure 2 provides information on the types of
landowners and the number of listed species having habitat on their
lands.
Figure 2: Type of Nonfederal
Landowner With Habitat of
Listed Species
(See figure in printed
edition.)
Note: "Private" = private citizen and/or company corporation;
"Government" = state, county, and/or city government.
Some nonfederal lands have been designated as critical habitat for
certain listed species. As stated previously, if habitat is
designated as critical for a species, the Service has determined that
the habitat is essential to the survival of the species and may
require special management or protection. Critical habitat
designated on nonfederal lands receives protection under the ESA only
when an activity affecting that habitat is included in a consultation
under section 7. According to data provided by the Service, 80 of
the 105 species for which critical habitat has been designated have a
portion of that critical habitat on nonfederal lands. More than half
of these, or 43 species, have over 80 percent of their critical
habitat on nonfederal lands.
THE ACT HAS ADDRESSED SPECIES
PROTECTION ON NONFEDERAL LANDS
------------------------------------------------------------ Letter :4
As previously discussed, the consultation process and the habitat
conservation planning process of the ESA are the primary mechanisms
that the act establishes for species protection on nonfederal lands.
These processes have addressed potential conflicts between species
protection and nonfederal land use activities. In such instances,
nonfederal landowners have been required to modify their planned or
ongoing activities to minimize and/or mitigate the impacts of their
activities on protected species.
Consultations often begin informally to determine whether a federal
agency's action may adversely affect a protected species or its
critical habitat. If the Service determines that the action may have
an adverse effect, a formal consultation is undertaken. During
either informal or formal consultations, the Service may identify
actions that can be taken to avoid adverse impacts.
Service-wide data identifying all instances in which the consultation
process addressed species protection on nonfederal lands are not
readily available. Therefore, we surveyed Service officials and
reviewed records documenting the results of selected formal and
informal consultations to determine how potential conflicts between
species protection and nonfederal land use activities have been
addressed. The following examples briefly describe actions that
nonfederal landowners have been required to take to provide
protection for species.
A California developer had proposed building a retail outlet mall on
land containing wetland habitat for the Sebastapol meadowfoam, a
protected plant. Because the developer needed authorization from the
U.S. Army Corps of Engineers (Corps)\4 to fill wetland areas, the
Corps consulted with the Service on measures the developer needed to
take to mitigate the project's impact on the plant. The
consultation, which proceeded to the formal stage, resulted in the
developer's agreeing to (1) establish a new Sebastapol meadowfoam
colony in an off-site area and (2) acquire and protect additional
habitat containing an existing natural population of the species.
Land planned for the expansion of a golf course within a state park
near Austin, Texas, contains critical habitat for the protected
Houston toad. In October 1993, the Service, the National Park
Service,\5 and the project's proponent (the Texas Parks and Wildlife
Department) initiated formal consultation on the project's impact on
the toad. In April 1994, the Service informed the Park Service of
its determination that the project, as proposed, would destroy or
adversely modify critical habitat for the toad.
In its draft biological opinion on the proposed project's potential
impact on the toad, the Service identified two alternatives to the
project. One alternative would avoid adversely modifying the toad's
critical habitat and avoid off-site impacts to the toad by relocating
the project to a site that did not include toad habitat. The other
was to build the golf course as planned while implementing measures
designed to minimize and offset impacts on the toad. These actions
would be in addition to various conservation measures previously
proposed by the applicant and would include prohibiting the use of
any pesticides found by the Service to be a threat to the toad,
controlling erosion during construction and until the site was
revegetated, performing construction during the toad's nonbreeding
season, managing habitat areas for the toad, and increasing from 260
acres to 340 acres the amount of habitat to be acquired to offset the
expected loss of 235 acres of the toad's habitat.
As of October 1994, the Service did not know how the Park Service and
the project's proponent would respond. According to a Service
official, the project will also need the approval of the Texas Parks
and Wildlife Commission, which will consider factors in addition to
the project's potential impacts on the toad.
A privately owned company in California that produces salt owns land
containing habitat for two protected species--the salt marsh harvest
mouse and California clapper rail (a bird). As a result of a formal
consultation with the Service and the Corps, the company was required
to modify the dredge-and-fill practices used to maintain its salt
ponds to reduce the practices' adverse impacts on the species.
Specifically, the Corps' dredging permit directed the company to (1)
avoid areas with active nests belonging to the clapper rail, (2)
minimize the amount of dredge material deposited in the species'
marsh habitat, and (3) reestablish marsh vegetation in areas
disturbed by the dredge-and-fill operations.
Sand and gravel dredging operations occurring on private lands along
streams in the Ozarks region of Missouri have been modified to
protect the Niangua darter, a protected fish. The dredging activity,
in many cases, occurs in areas designated as critical habitat for the
darter. Through informal consultations with the Corps, which issues
permits for the dredging operations, the Service prescribed measures
to protect the fish, including a year-round prohibition on dredging
in flowing water and a ban on all operations during the darter's
spawning period, which occurs between March 15 and June 15.
The habitat conservation planning process, which includes the
issuance of incidental take permits, has also addressed conflicts
between species protection and activities on nonfederal lands. As of
June 1, 1994, the Service had approved 31 HCPs, and approximately 132
plans were being developed or awaiting the Service's approval.
Incidental take permits for 27 different species are associated with
the approved HCPs. (Summary data on the 31 approved HCPs are
contained in app. I.)
The scope and complexity of approved HCPs vary. Some HCPs have
addressed how development or other land use activities and species
protection will be achieved in large geographic areas where there are
many nonfederal landowners and a broad range of residential and
commercial development activities planned and under way. Others
address species impacts and the protection of species in the context
of a site-specific project or the activity of one nonfederal
landowner. The incidental take permits associated with the 31
approved plans cover varying time periods--for 8 permits, the period
is 5 years or less, while for 18 permits, the period is 20 years or
more. According to Service officials, the time required to develop
and gain the Service's approval of an HCP generally ranges from about
4 months to 3 years, depending on the complexity of the HCP and the
progress of negotiations.
While HCPs contain a variety of measures that participants are to
take to minimize and mitigate impacts on species, nearly all plans
contain specific provisions for replacing habitat expected to be lost
as a result of the planned projects. Also, plans often call for
nonfederal landowners, while carrying out their activities, to take
specific steps to minimize the impacts of those activities on
individual species. The following examples illustrate the types of
measures nonfederal landowners were to take to minimize and mitigate
impacts of their activities on protected species. The first example
describes an HCP covering a relatively large area, and the second, a
site-specific location.
In September 1989, Clark County, Nevada, and five cities in the Las
Vegas Valley began developing a short-term HCP that would allow
development in the area to proceed and provide immediate protection
for the desert tortoise until a long-term HCP could be developed.
The area addressed under the short-term HCP covers approximately
300,000 acres, about 200,000 of which are privately owned.
Approximately 22,000 acres are expected to be developed during the 3
years under the short-term HCP, leading to the taking of 1,788 to
3,710 tortoises.
The HCP establishes four activities designed to minimize and monitor
the taking of tortoises: (1) surveying and removing tortoises at the
developer's expense before disturbing a site;\6 (2) placing the
tortoises removed from project sites in research, relocation
programs, zoos, museum exhibits, educational facilities, and adoption
programs; (3) reviewing and monitoring projects through the
submission of an HCP compliance form, before disturbing a site, which
identifies the projects and the results of the efforts to survey and
remove tortoises; and (4) conducting a public information program
designed to inform local residents of the HCP's purpose and
conditions.
To mitigate the incidental taking of tortoises, the HCP calls for
conserving and managing at least 400,000 acres of existing federal
land as desert tortoise habitat. Management of the habitat includes
such land use controls as eliminating grazing, restricting
off-highway vehicles and intensive recreation, and prohibiting new
mining claims. To provide a scientific basis for designing and
managing the habitat, the county and cities are responsible for
establishing a tortoise research and relocation program focusing on
such issues as the effects of grazing, predation on the tortoise, the
genetics and demography of the tortoise, and the reintroduction of
the animals into suitable habitat. Projects' proponents in the HCP
area are required to pay a $550 per acre mitigation fee to fund the
HCP's conservation and mitigation measures.
The Coalinga Cogeneration Company contacted the Service in 1989 about
its plans to construct a cogeneration plant in Fresno County,
California, designed to generate steam and electrical power for use
in recovering crude oil from a nearby oil field. The construction
and operation of the plant was expected to result in (1) the
permanent loss of 43.7 acres of habitat for the endangered San
Joaquin kit fox and (2) the temporary disturbance of an additional
43.7 acres of habitat for this species. In addition, vehicle traffic
associated with the project could also result in the taking of the
protected blunt-nosed leopard lizard. To mitigate the project's
impacts on the two species, the HCP calls for the company to acquire
179 acres of habitat to be managed solely for the conservation,
restoration, and enhancement of the species. The HCP also provides
funding of $107,400 ($600 per acre) for acquiring the habitat,
$17,900 ($100 per acre) for protective fencing, and $53,700 ($300 per
acre) for long-term management of the acquired lands.
The HCP contains numerous measures for minimizing the taking of the
two species during the plant's construction and operation. Examples
include hiring a qualified biologist to identify occupied kit fox
dens on lands subject to modification, establishing fenced exclusion
zones around all known dens that may be affected by construction,
excavating by hand all known and potential dens that would be
destroyed during construction (to ensure that no foxes are trapped or
injured), and covering holes and trenches deeper than 2 feet at the
end of the work day or installing escape ramps to prevent entrapment
of the animals. The company also agreed to establish an employee
orientation program covering such topics as the biology and habitat
needs of the two species, their status under the ESA, and the HCP's
measures for their protection.
--------------------
\4 Under the Clean Water Act, the Corps must issue a permit for
dredging or filling wetlands.
\5 The Park Service proposed to provide some funding for the project
with Land and Water Conservation funds.
\6 This requirement does not apply to projects in specified
exclusionary zones in highly urbanized areas or projects that meet
certain criteria (for example, projects being reconstructed as a
result of fire, rehabilitated or remodeled, etc.).
LEGAL ACTIONS HAVE BEEN TAKEN
TO PROTECT SPECIES
------------------------------------------------------------ Letter :5
Legal actions involving nonfederal lands or directed at individuals
to protect listed species have been taken using the authorities
contained in the ESA. Legal actions have also been taken as a result
of the protection afforded to listed species. More specifically, (1)
the Service has initiated legal actions to enforce the act's
prohibition against the taking of listed species, (2) the United
States and other parties have sought injunctive relief using the
act's provisions to stop or delay activities on nonfederal lands that
were viewed as posing a threat to listed species, and (3) private
citizens have claimed that species protection efforts have resulted
in the loss of property without compensation in violation of the
Fifth Amendment to the Constitution.
We obtained Service-wide information on enforcement actions under the
ESA from the Service's computerized law enforcement data base.
According to the data base, for fiscal years 1988 through 1993, about
4,230 violations of the ESA had been adjudicated. While the majority
of these violations involved instances of illegal imports or exports
of listed species or of products made from listed species,\7
the data base showed that 126 (about 3 percent of all violations)
involved the illegal taking of a listed species within the United
States.
In connection with the 126 violations, the Service's data base showed
that 86 involved criminal charges, and 40 involved civil charges. Of
the 86 criminal violations, the data base identified a result for 71.
For these 71, many of which had more than one result,
fines ranging from $25 to $50,000 were levied in 59 instances (in 21,
fines were $1,000 or more),
fines were suspended in 2 instances,
jail sentences ranging from 10 days to 1,170 days were given in 18
instances,
jail sentences were suspended in 2 instances, and
probation ranging from 182 days to 1,825 days was given in 33
instances.
Of the 40 civil violations, 20 resulted in a total of about $138,000
in civil penalties. Civil penalties assessed in individual instances
ranged from $50 to $50,000.
To obtain information about takings investigations and the basis for
initiating takings prosecutions associated with nonfederal lands, we
surveyed Service law enforcement officials. According to these
officials, for the period from January 1, 1988, through September 30,
1993, 321 investigations of the illegal taking of listed species on
nonfederal lands and 100 prosecutions had been initiated.\8
Table 2 shows the basis for and outcome of the 100 prosecutions,
according to these officials.
Table 2
Disposition of Cases Prosecuted for the
Illegal Taking of Species Under the ESA,
Jan. 1988-Sept. 1993
Number of
Type of outcome for prosecution initiated prosecutions
---------------------------------------------- ------------
Conviction based on species mortality 32
Conviction based on modification of habitat 7
Conviction based on both mortality and 1
habitat
modification
Conviction based on species harassment 1
Out-of-court settlement 16
No conviction 8
Still in litigation 29
Other\a 6
============================================================
Total 100
------------------------------------------------------------
\a "Other" includes cases awaiting authorization for assessment of
civil penalties and one case in pretrial discussion.
We also found that since January 1, 1983, the federal government or
some other party obtained injunctive relief in at least four
instances to stop or delay an activity on nonfederal lands that could
harm a listed species for which the Service has responsibility.\9 The
following briefly summarizes these instances:
As a result of a suit brought by the Sierra Club and others against
the Hawaii Department of Land and Natural Resources, et al, the U.S.
District Court ruled in November 1986 that the state's maintenance of
a population of mouflon sheep for hunting purposes was harming the
palila, a listed bird. The court ordered the state to remove the
sheep from the bird's critical habitat. This ruling was upheld on
appeal.
In July 1990, the United States obtained a temporary restraining
order restricting beach-cleaning activities on private land that
could lead to the taking of four listed piping plovers. The involved
parties subsequently signed a settlement agreement that provided
protection for the birds while allowing some beach-cleaning
activities to continue.
In December 1993, the United States brought suit to stop a logging
company from harvesting timber on its lands in Washington state. The
United States alleged that the harvest would have resulted in the
taking of a pair of listed northern spotted owls. The parties first
agreed to a temporary restraining order that prohibited timber
harvest activities pending a decision on the United States' motion
for a preliminary injunction. In January 1994, the parties agreed to
continue the prohibition on harvesting until the matter is resolved
at trial.
An environmental group obtained a preliminary injunction in February
1994 to halt the logging of old- growth forest on private lands in
California, which was allegedly resulting in the taking of the
marbled murrelet (a listed bird).
Concerning certain legal proceedings that claim a violation of the
Fifth Amendment to the Constitution resulting from species protection
under the ESA, as of May 1994, according to the Congressional
Research Service, only two reported court decisions had been reached.
In one case, a rancher sought compensation from the United States
because the ESA prohibited him from killing grizzly bears that preyed
on his sheep. The court ruled that since the government neither
owned nor controlled the grizzly bears, it was not responsible for
their actions.\10 The other case involved an individual who had
transported a listed cougar and a listed leopard from Florida to
Kentucky in violation of the ESA's ban on the transportation of
endangered animals in interstate (and foreign) commerce. The
individual claimed that the government's seizure of these animals
deprived him of his property without just compensation and due
process. The court found no constitutional taking since the ESA only
prevented the sale of the endangered animals in interstate commerce,
leaving the individual the option of selling the animals within the
state of Florida.\11
--------------------
\7 According to Service officials, data maintained in the Service's
Law Enforcement Management Information System (a computerized data
base) on the Service's wildlife inspection program's activities may
be incomplete.
\8 The investigations and prosecutions may include instances
involving a mix of federal and nonfederal lands and violations of
statutes in addition to the ESA. Cases involving the taking of bald
eagles are not included because Service officials stated that these
cases are typically prosecuted under other statutes, such as the Bald
Eagle Protection Act.
\9 An additional instance of injunctive relief obtained under the
authorities of the ESA involved a listed species under the protection
of the Department of Commerce's National Marine Fisheries Service.
\10 Christy v. Hodel, 857 F.2d 1324 (9th Cir. 1988), cert. denied,
490 U.S. 1114 (1989).
\11 U.S. v. Kepler, 531 F.2d 796 (6th Cir. 1976).
AGENCY COMMENTS
------------------------------------------------------------ Letter :6
In commenting on a draft of this report, the Assistant Secretary for
Fish and Wildlife and Parks, Department of the Interior, stated that
the report's discussion of the application of section 7 and section
10 of the ESA to nonfederal land use activities was accurate. (See
app. II.)
---------------------------------------------------------- Letter :6.1
Our review was conducted between June 1993 and October 1994 in
accordance with generally accepted government auditing standards. A
discussion of the scope and methodology for our work is contained in
appendix III.
Unless you publicly announce its contents earlier, we plan no further
distribution of this report until 30 days from the date of this
letter. At that time, we will send copies to the appropriate
congressional committees; the Secretary of the Interior; and the
Director, U.S. Fish & Wildlife Service. We will also make copies
available to others upon request. Please call me on (202) 512-7756
if you or your staff have any questions. Major contributors to this
report are listed in appendix IV.
James Duffus III
Director, Natural Resources
Management Issues
SUMMARY OF APPROVED HABITAT
CONSERVATION PLANS (AS OF
06/01/94)
=========================================================== Appendix I
Dates
effectiv Listed Total HCP Project
Plan title Location e species\a area\b description
------------- ------------- -------- ------------- ---------- -------------
Fish and Wildlife Service Region 1
--------------------------------------------------------------------------------
San Bruno San Mateo 3/4/83 - Mission blue 3,600 Various
Mountain County, 3/31/ butterfly, acres public and
California 2013 San Bruno private
elfin projects
butterfly, including
San Francisco residential
garter snake and
commercial
development
Coachella Riverside 4/25/86 Coachella 240,000 Various
Valley County, -4/30/ Valley acres public and
California 2016 fringe-toed private
lizard projects
including
residential
and
commercial
development
California Kern County, 1/18/90 San Joaquin 635 acres Construction
Dept. of California -12/31/ kit fox, and operation
Corrections, 2040 blunt-nosed of a state
Delano Prison leopard correctional
lizard, facility
Tipton
kangaroo rat
County of Riverside 8/1/90 - Stephens' 300,000 Various
Riverside County, 9/30/94 kangaroo rat acres\c public and
(short term California private
permit) projects
including
residential
and
commercial
development
Lennane Sacramento, 8/17/90 Valley 48 acres A development
Properties California -7/31/ elderberry including
95 longhorn office,
beetle retail, and
residential
dwellings, as
well as a
hotel
City of Yuba County, 1/29/91 Valley 27 acres Construction
Marysville California -1/31/ elderberry \ and operation
97 longhorn of effluent
beetle disposal
ponds
Coalinga Fresno 3/21/91 San Joaquin 43.7 Construction
Cogeneration County, -3/31/ kit fox, acres and operation
California 2011 blunt-nosed of a 38-
leopard megawatt
lizard cogeneration
facility
Clark County Clark County, 7/24/91 Desert 299,700 Various
(short term Nevada -7/31/ tortoise acres public and
permit) 94 private
projects
including
residential
and
commercial
development
Corona Riverside 12/30/ Stephens' 627 acres Construction
Development County, 91 -12/ kangaroo rat of a
Co. California 31/98 residential
development
Simpson Del Norte, 9/17/92 Northern 383,100 Timber
Timber Co. Humboldt, -9/16/ spotted owl acres harvesting
Mendocino, 2022 \ operations
and Trinity
Counties,
California
Citation Riverside 9/28/92 Stephens' 21.6 A residential
Builders County, -9/28/ kangaroo rat acres development
California 94
Envirocycle Kern County, 2/26/93 San Joaquin 20 acres Construction
California -2/26/ kit fox, and operation
2043 blunt-nosed of a waste
leopard solids
lizard, giant transfer and
kangaroo rat processing
plant
Yucca Valley San 8/26/93 Desert 4.8 acres Construction
Church Sites Bernardino -8/26/ tortoise of church
County, 96 buildings and
California related
facilities
Murray Lewis County, 9/24/93 Northern 54,610 Timber
Pacific Corp. Washington -9/24/ spotted owl acres harvesting
2093 \ operations
Coyote Hills Fullerton, 10/22/ California 391 acres A golf course
East California 93 -10/ gnatcatcher and
22/2018 residential
community
Granite Fresno 12/29/ San Joaquin 54 acres Expansion of
Construction County, 93 -12/ kit fox, a sand and
California 29/2013 blunt-nosed gravel
leopard extraction
lizard operation
Valley of Clark County, 1/20/94 Desert 16.58 Reconstructio
Fire State Nevada -1/20/ tortoise acres n and
Park 2024 operation of
a road within
a state park
Pacific Riverside 5/27/94 Stephens' 30.75 A residential
Gateway Homes County, -5/27/ kangaroo rat acres development
California 96
Champagne Kern County, 6/1/94 - Tipton 82 acres Construction
Shores California 6/1/ kangaroo rat and operation
2024 of an
artificial
water ski
lake and
associated
residential
development
Fish and Wildlife Service Region 2
--------------------------------------------------------------------------------
LakeLine Mall Austin, Texas 2/13/92 Bee Creek 116 acres A shopping
-2/13/ harvestman, mall
2022 Tooth Cave
ground
beetle,
Canyon Ridge Austin, Texas 8/17/93 Golden- 142.61 A mixed
-8/17/ cheeked acres residential,
2013 warbler commercial,
and office
development
Lake Pointe Travis 2/15/94 Golden 496 acres A single-
County, Texas -2/28/ cheeked family
2009 warbler residential
and
commercial
development
Fish and Wildlife Service Region 4
--------------------------------------------------------------------------------
Nichols/ North Key 10/10/ Key Largo 9 acres A residential
Hendrix/Post Largo, 86 -12/ woodrat, Key development
Florida 31/91 Largo cotton
mouse
Driscoll Monroe 6/6/90 - Key Largo 42 acres Land clearing
Properties, County, 5/31/ woodrat, Key and
Inc. Florida 95 Largo cotton construction
mouse, Schaus of
swallowtail residential
butterfly homes
Wal-Mart Highlands 3/11/93 Florida scrub 24.26 A retail
Stores, Inc. County, -3/11/ jay, eastern acres store
Florida 94 indigo snake,
blue-tailed
mole skink,
sand skink
International Monroe and 10/21/ Red Hills 30,000 Timber
Paper Conecuh 93 -10/ salamander acres harvest
Counties, 21/2024 operations
Alabama
Sea Mist, Baldwin 12/27/ Alabama beach 46 acres A residential
Inc. County, 93 -12/ mouse development
Alabama 27/2023
D&E Baldwin 4/29/94 Alabama beach 252 acres A residential
Investments, County, -4/29/ mouse development
Ltd. Alabama 2024
Fel-Kran, Baldwin, 5/4/94 - Perdido Key 27 acres A residential
Inc. County 5/4/ beach mouse \ development
Alabama 2024 with
associated
piers
Ocean Ridge, Brevard 5/30/94 Florida scrub 8.2 acres A residential
Ltd. County, -5/30/ jay development
Florida 2004
Fish and Wildlife Service Region 6
--------------------------------------------------------------------------------
Hell Canyon Salt Lake 2/10/94 American 30 acres Operation of
Quarry City, Utah -2/10/ peregrine \ a quarry
2014 falcon producing
limestone,
sand, and
gravel
--------------------------------------------------------------------------------
\a Species listed here are those specifically covered by the
incidental take permit. In some cases, listed plants, candidate
species, and/or other species of concern are addressed in the HCP.
\b Total HCP area acres is the size of the planning area within which
the activity or development will occur.
\c This figure represents the historic range of the Stephens'
kangaroo rat. The total HCP area is somewhat smaller.
(See figure in printed edition.)Appendix II
COMMENTS FROM THE DEPARTMENT OF
THE INTERIOR
=========================================================== Appendix I
SCOPE AND METHODOLOGY
========================================================= Appendix III
In preparing this report, we examined the Endangered Species Act
(ESA) and the applicable federal regulations to identify the
processes that the ESA establishes for protecting species on
nonfederal lands. We obtained information on efforts to protect
species on nonfederal lands by sending a written survey to the U.S.
Fish and Wildlife Service's (FWS') seven regional offices. We
pretested this survey instrument at three FWS regional offices and
two FWS field offices and obtained comments from the Division of
Endangered Species at FWS headquarters.
Using the survey, we collected data on (1) the number of
ESA-protected species with habitat on nonfederal lands, (2) the
portion of these species' habitat on nonfederal lands, (3) the number
of law enforcement investigations and prosecutions related to ESA
takings on nonfederal lands, and (4) instances in which injunctive
relief was obtained under the ESA to stop or delay nonfederal land
projects or activities that could potentially harm protected species.
We discussed the completeness and accuracy of the survey data with
personnel from all of FWS' regional offices and over 30 field
locations. Many of these officials provided us with additional
details on their responses to certain questions.
We obtained information on specific instances in which potential
conflicts existed between species protection and nonfederal land use
activities through a review of FWS documents and records describing
the results of consultations under section 7 of the ESA and a review
of approved habitat conservation plans. We also discussed these
specific instances with knowledgable FWS officials. Finally, we
contacted knowledgeable individuals from agencies and organizations
outside of FWS to verify information on injunctive relief obtained
under the ESA and to obtain information on constitutional taking
claims.
Our review included species listed in the United States as of May 10,
1993.\12 As agreed, we did not include species for which the National
Marine Fisheries Service has responsibility.
--------------------
\12 This includes species with habitats on nonfederal lands in Puerto
Rico, the Commonwealth of the North Marianas Islands, Guam, the
Federated States of Micronesia, and the Virgin Islands.
MAJOR CONTRIBUTORS TO THIS REPORT
========================================================== Appendix IV
RESOURCES, COMMUNITY, AND ECONOMIC
DEVELOPMENT DIVISION, WASHINGTON,
D.C.
Paul Grace
Fran Featherston
SEATTLE REGIONAL OFFICE
William K. Garber